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LAW v. CULLEN

July 15, 1985

THOMAS LAW, JR., Plaintiff, against EDWARD J. CULLEN, individually and as a police officer; JOHN ROE, individually and as a police officer; JOHN COE, individually and as a police officer; and THE CITY OF NEW YORK, Defendants


The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

This action is brought pursuant to 42 U.S.C. section 1983, based upon allegations that plaintiff, Thomas Law, Jr., was beaten by New York City police officers upon his arrest on August 15, 1981. Named as defendants are the arresting officer, Edward J. Cullen ("Cullen"), three other unnamed police officers, and the City of New York.

Before the Court are a number of motions, made by both plaintiff and defendants. Defendant, the City of New York, moves for summary judgment, pursuant to Rule 56, Fed. R. Civ. P., contending that plaintiff has failed to raise an issue of fact whether the City had an official policy or custom sufficient to render it liable for any alleged deprivation of plaintiff's constitutional rights; and, in addition, for sanctions pursuant to Rule 11. Officer Cullen and the City also move to amend their answer to plead a statute of limitations defense to plaintiff's state law claims, and for dismissal of those claims as barred by the appropriate limitations period. Finally, the defendants move to preclude testimony of three witnesses whose names plaintiff allegedly failed to disclose during discovery, or in the alternative, for further discovery limited to those witnesses.

 In addition to opposing defendants' various motions, plaintiff moves, pursuant to Rule 15(a), to amend his complaint to substitute the now known names of police officers for the present "John Does," and for further discovery with respect to the named officers' personnel files; to dismiss the counterclaim of Officer Cullen pursuant to Rule 12(c) on grounds it violates public policy and is barred by the statute of limitations; and in limine for a ruling that plaintiff may introduce evidence at trial of certain complaints made against Officer Cullen.

 DISCUSSION

 Summary Judgment Motion

 Under Monell v. Department of Social Services, *fn1" a municipality may be held liable under section 1983 only upon proof of an official "custom" or "policy" which proximately causes the deprivation of constitutional rights. *fn2" Such a custom or policy may be shown by a pattern of omissions reaching the level of "gross negligence" which indicates "deliberate indifference" to an individual's constitutional rights. *fn3" However, it is only a "known injury, a known risk, or a specific duty," the deliberate indifference to which causes the plaintiff's injury which will suffice to render a municipality liable under section 1983. *fn4" "[T]here must be an affirmative link between the [City's] policy and the particular constitutional violation alleged." *fn5"

 The broad sweep of plaintiff's efforts to come within the terms of Monell is based upon the allegation in his complaint that

 
the actions of the defendants . . . were taken pursuant to a de facto policy of the City of New York, which is implemented by police officers of the said City, to punish summarily persons who fail to obey police commands, whether lawful or not, by means of unlawful arrest, detention, excessive use of force, and the denial of necessary medical attention.

 There is not a single evidentiary fact submitted to support this conclusory and wide-ranging allegation of a "de facto" policy of the City of New York.

 However, in an effort to resist the City's motion for summary judgment, plaintiff now contends that the City may be held responsible for an alleged deprivation of his constitutional rights because it had a "custom" or "policy" of ignoring Officer Cullen's propensity to use excessive force. In support of this claim, plaintiff relies principally upon five complaints filed with the New York City Civilian Complaint Review Board ("CCRB"), charging Officer Cullen with abuse of authority or excessive use of force. *fn6" In addition, plaintiff points to the fact that none of the complaints against Cullen are mentioned in his personnel file. *fn7"

 In response, and in support of its motion, the City relies upon the very detailed affidavit of Assistant Police Chief Koehler who explicitly denies any "policy or practice on the part of the New York City Police Department to condone, permit, or in any other manner tolerate the use of excessive force." In support of that statement, Koehler details the extensive procedures employed by the Police Department to avert abusive behavior by police officers, to alert the City to repeated incidents or patterns of abuse, and to train and supervise police officers in general. The concern of the City that its police officers will not only faithfully perform their assigned tasks but also be mindful of their positive duty to respect the constitutional rights of the public is evidenced by the fact that the procedure for identifying likely offenders starts even before candidates are found qualified to take the oral and written examinations and continues during their probationary period. Entirely apart from this general policy, police officers, during their tenure, are subject to continued scrutiny of their performance and given periodic training. In addition, Assistant Chief Koehler states that Officer Cullen's performance did not call for any special scrutiny under established police procedure and was completely consistent with Police Department standards, "always professional," and "reflect[ed] a 'high degree of integrity in his dealings with the public.'"

 The Court finds that the five CCRB complaints relied upon by plaintiff do not raise an issue of fact as to the liability of the City of New York for any claimed deprivation of plaintiff's constitutional rights. The inference that plaintiff would have this Court and a jury draw from the existence of the five CCRB complaints is that in fact Officer Cullen had a propensity to use excessive force of which the City knew or should have known. However, the CCRB complaints are merely charges; and in this case, four of the five charges were found by the CCRB, after investigation and based upon available evidence, to be "unsubstantiated." While plaintiff argues that "unsubstantiated" does not mean that the charges could not have been proven, the fact remains that no finding of actual abuse or use of excessive force was ever made against Officer Cullen prior to August 1981. The fifth complaint, found substantiated, was based upon an improper search, not excessive use of force. In the absence of any substantiated charges of abuse, there is no basis for plaintiff's claim that Officer Cullen had a "propensity" to use excessive force and, hence, no basis for its claim that the City was deliberately indifferent to such a propensity. *fn8" There can be no breach by the City of a duty to act, when the circumstances do not give rise, in the first instance, to any duty. *fn9"

 Plaintiff, in resisting the City's summary judgment motion, seeks to retry the charges brought before the CCRB in the hope that a jury will find, contrary to CCRB's investigation, that Officer Cullen did, on those four occasions spanning nine years, use excessive force. Even assuming that the civilian charges were admissible upon a trial, and sufficient to support a jury finding that Cullen used excessive force, plaintiff's reliance thereon is misplaced. A substantiation upon a trial of the charge that Officer Cullen had a ...


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